Mr. ThaddHryniewiecki,
Business Representative, Service Employees International
Union, Local 150, AFL-CIO, CLC, appearing on behalf of the Union.

Catalano & Sparber, Attorneys at Law, by Mr.
NeilSparber, appearing on behalf of the
Company.

ARBITRATION AWARD

The above-captioned parties, hereinafter the Union and the Company or Employer,
respectively, are signatories to a collective bargaining agreement providing for final and
binding
arbitration of grievances. Pursuant to a request for arbitration, the Wisconsin Employment
Relations Commission appointed the undersigned to hear a grievance. A hearing, which was
not
transcribed, was held on October 13, 1994, in Milwaukee, Wisconsin. The parties filed
briefs
in the matter which were received by December 19, 1994. Based on the entire record, I
issue the
following Award.

ISSUE

The parties stipulated to the following issue:

Was Michael Rushak discharged for just cause? If not, what is
the remedy?

Section 4. No employee shall be terminated
except
for just cause, unless the employee has
not completed his/her probationary period which shall be thirty (30) calendar days from date
of
hire. The Employer shall use the following procedure (except in cases where the employee
has
been accused of theft, drinking on the job, fighting or blatant safety violations) when
implementing discipline and discharge:

1. First offense in any one (1) year = verbal counseling

2. Second offense in any one (1) year = written
warning

3. Third offense in any one (1) year = three (3) day
suspension without pay

4. Fourth offense in any one (1) year = discharge

FACTS

The Company operates a cleaning service. Among the sites it cleans are the Bradley
Center and County Stadium in Milwaukee. The Union is the exclusive bargaining
representative
for all custodial employes employed by the Company. Grievant Michael Rushak started his
employment with the Company as a seasonal employe. He worked during the 1993
Milwaukee
Brewers baseball season as an events manager. This job involved cleaning up debris and
spills.
After the baseball season ended, he went to work for the Company at the Bradley Center as a
custodial leadperson. He quit that job shortly before Thanksgiving, 1993. In
mid-December,
1993, the Company's site manager at County Stadium, David Korol, offered him a full-time
office
cleaner position at County Stadium. Rushak accepted the position and began cleaning the
Milwaukee Brewers offices shortly before Christmas, 1993. He was employed in that
capacity
about a month until his discharge on January 25, 1994.

A week or two after he started working at County Stadium, Rushak was involved in
an
incident wherein he called a woman who works for the Brewers a "bitch." Afterwards,
Korol
apologized to an official of the Brewers on behalf of both Rushak and the Company. Korol
then
admonished Rushak not to do it again. This verbal admonishment was the only discipline
imposed
for the matter.

Rushak cleaned offices on the second shift with Karen Musha. Musha has worked
for
the
Company for about four and one-half years, the last two and one-half as lead worker of the
office
cleaners. As lead worker, Musha is responsible for ensuring that all the offices at County
Stadium
are cleaned properly. As a result, she oversaw the cleaning work Rushak performed. Like
Rushak, Musha was in the bargaining unit.

On the evening of January 24, 1994, the regular vacuum cleaners were being
repaired, so
Korol brought an old vacuum cleaner from his home to use to clean the offices. Rushak
ended
up using this old vacuum. He had problems with this vacuum all night because the bag was
broken and it did not pick up the rock salt in the offices' plush carpet. Rushak complained
to
Musha about the vacuum and told her that he could not pick up the rock salt with it, to
which
Musha responded that it was important that the rock salt get picked up by any means
available,
including sweeping or picking it up by hand. Rushak ended up doing just that, namely
sweeping
part of the offices with a broom and picking up rock salt by hand.

Rushak left after his shift ended. After he left, Musha inspected the areas Rushak
had
cleaned. Upon doing so, Musha felt that one particular area, namely the dining room, had
not
been cleaned properly. She then cleaned it to her satisfaction.

On the morning of January 25, 1994, Musha telephoned Korol and told him
that Rushak
had left a mess in the dining room which she had cleaned up after he left. Korol replied that
he
would meet with Musha and Rushak the following day to discuss the matter. After the phone
call
ended, Korol filled out a form the Company uses to document written warnings. Therein,
Korol
wrote up Rushak for substandard cleaning work on January 24, 1994. Korol left this
completed
but unsigned write-up on his desk.

That afternoon, both Musha and Rushak reported for work as scheduled. Before
starting
work, both went to Korol's office although Korol was not there at the time. While they
were in
Korol's office, Musha asked Rushak why he had not finished cleaning the dining room the
previous night. This question perturbed Rushak and he responded irately that he had cleaned
the
dining room. Musha and Rushak then verbally sparred back and forth about whether Rushak
had
or had not cleaned the dining room the previous night. Musha testified that during this
verbal
exchange, Rushak became so agitated that he hit the wall with enough force that it caused
pictures
to fall off the wall. Rushak denied hitting the wall or causing pictures to fall off the wall.
At
some point during this verbal exchange, Rushak saw the incident report/write-up on Korol's
desk
that referenced him and the cleaning of the dining room the previous evening. When Rushak
saw
the write-up, he became angrier. Rushak testified at the hearing that the reason he became
more
agitated after seeing the write-up was that Korol had written him up without asking for his
side
of the story. Rushak then took the write-up off Korol's desk, stuffed it in his pocket, and
left the
room.

Rushak and Musha next encountered each other when they punched the time clock.
As
they did so, Rushak told Musha that he would not work with her. After this comment, the
two
went their separate ways again.

Musha and Rushak then cleaned separate offices. Since Musha was lead worker, she
carried keys to all the offices. Rushak did not have any keys. As a result, Musha had to
unlock
the various doors for Rushak. When Musha unlocked one door for Rushak, she told him that
she
would check that office after he was finished to ensure that it was properly cleaned. This
comment irritated Rushak who replied that Musha did not have to check his work. As the
two
went their separate ways again, Rushak's parting comment to Musha
was: "You'd better enjoy
your last day, you snot-nosed bitch." Rushak testified at the hearing that the reason he called
Musha a "bitch" was because he felt she was following him from room to room and
harassing
him.

Musha and Rushak encountered each other again in Bud Selig's office. As they had
done
previously, they verbally sparred back and forth. This time the topic was whether or not it
was
part of Rushak's job to push Selig's chair back under his desk after the room had been
cleaned.
Following their verbal exchange, the two parted company again.

Shortly afterwards, Musha and Rushak saw each other in the hallway. Each verbally
taunted the other, but the record does not indicate what was said in their short verbal
exchange.

What happened next is disputed. There were no eyewitnesses to the incident other
than
those involved.

Musha, a woman of average size, testified that Rushak then ran down the hall
towards
her
with his hand in a fist. As he was doing so, she asked him rhetorically: "What
are you going to
do, hit me?" Musha testified that when Rushak reached her he did just that, specifically
hitting
her in the shoulder. Musha testified that the force of the blow caused her to fall to the floor
and
her glasses to fly off her face.

Rushak testified that Musha came out of the women's rest room where she had been
smoking marijuana and charged down the hallway towards him. Rushak, who is
considerably
larger and heavier than Musha, testified he held out his arm to fend her off and protect
himself.
Rushak testified that Musha ran into his extended arm and that this caused her to collapse on
the
floor. Rushak admitted that Musha ended up on the floor, but he testified he did not
purposely
knock her down.

After Musha got up off the floor, she told Rushak that she was going to call Korol
and tell
him what had just happened, to which Rushak replied "go ahead." She and Rushak then
walked
off together to a phone and called Korol at his home.

Although it is disputed who made the call, it is undisputed that both Musha and
Rushak
talked with Korol during the subsequent phone call. Musha talked first and Rushak was
second.
Each heard what the other told Korol about the incident.

Musha told Korol that Rushak had pushed her down causing her glasses to fly off and
had
called her a "snot-nosed bitch." After hearing Musha's account of the incident, Korol asked
Musha to turn the phone over to Rushak, which she did. Korol then asked Rushak for his
account
of what had just happened. Rushak admitted to Korol that he had pushed Musha down which
caused her glasses to fly off her face. He further told Korol that he could not work with
her.
Rushak never told Korol during this phone call that Musha was the aggressor in their
altercation.
Korol then told Rushak to clock out and go home, which he did.

The next day, January 26, 1994, Rushak called Korol at work. During this
phone call
Korol discharged Rushak. Korol told Rushak he was fired for pushing Musha down the
previous
night. Korol also told Rushak that no matter how angry he was with Musha that night, he
should
not have pushed her down as he did. Rushak then responded that if he lost his job over the
incident, he thought Musha should lose hers as well. Korol replied that he was not going to
fire
Musha because she was a dependable long-term employe. At no point during this phone call
did
Rushak tell Korol that Musha was the aggressor in their altercation, or that Musha had
smoked
marijuana on the job.

The next day, Rushak went to County Stadium and talked with Chuck Ward about his
discharge. Ward does not work for the Harry M. Stevens (HMS) Company; he works
for the
Milwaukee Brewers as the Director of Stadium Operations. Rushak testified that his purpose
in
going over Korol's head and talking with Ward was to "spill the beans" on the activities of
HMS
(cleaning) employes. Rushak testified he told Ward that HMS (cleaning) employes smoked
marijuana and drank beer at the Stadium and left the Stadium during working hours without
authorization.

The Union filed a grievance over Rushak's discharge which was processed to
arbitration.

At the hearing Musha admitted she had smoked marijuana on the job. She testified
she did
not smoke marijuana on the job though the night of the incident with Rushak (January 25,
1994).

POSITIONS OF THE PARTIES

The Union's position is that the Company did not have just cause to discharge the
grievant.
The Union contends the Company has to prove that the grievant did what he was charged
with
doing, namely pushing Musha down. In the Union's view, the Company did not substantiate
this
charge. It notes in this regard that the grievant admitted that Musha ended up on the floor.
Given
this admission, the Union believes the question is how that happened -- was it the
result of being
pushed (as Musha contends) or was it the result of her running into Rushak's extended arm
(as
Rushak contends). The Union notes that these stories differ and there were no eyewitnesses
to the
incident other than those involved. The Union infers that Rushak's account of the incident
should
be credited over Musha's. To support this premise, the Union calls the arbitrator's attention
to
the fact that Musha admitted at the hearing that she has smoked marijuana on the job. The
Union
speculates that given this admission, Musha may have been under the influence of marijuana
the
night of the incident with Rushak and not in control of her faculties. The Union also submits
that
Musha may have fabricated the entire incident with Rushak. Finally, the Union asserts in the
alternative that no matter how the incident happened, Musha was difficult to work with and
provoked Rushak on the night in question by yelling at him. The Union therefore requests
that
the grievant be reinstated with a traditional make-whole remedy.

The Company's position is that it had just cause to discharge the grievant. According
to
the Company, it proved that the grievant did what he was charged with doing, namely
pushing
Musha down with such force that it caused her glasses to fly off her face. To support this
premise, it cites both Musha's testimony to that effect and Korol's testimony that Rushak
admitted
doing it during their phone call immediately after the incident happened. In the Company's
view,
their account of the incident is far more believable than Rushak's and thus their testimony
should
be credited instead of his. With regard to the level of discipline which was imposed, the
Company
believes termination was appropriate under the circumstances. It notes in this regard that the
grievant was a short-term employe. The Company therefore contends that the grievance
should
be denied and the discharge upheld.

DISCUSSION

Article VI, Section 4 of the parties' labor agreement contains what is
commonly known
as a "just cause" provision. It requires that the Company have just cause to discharge
employes.
What happened here is that an employe, namely the grievant, was discharged by the
Company.
Given this disciplinary action, the obvious question to be answered here is whether the
Company
had just cause for doing so.

As is normally the case, the term "just cause" is not defined in the parties' labor
agreement. While the term is undefined, a widely-understood and applied analytical
framework
has been developed over the years through the so-called common law of labor arbitration.
That
analytical framework consists of two basic questions: the first is whether the
Company
demonstrated the misconduct of the employe and the second, assuming this showing of
wrongdoing is made, is whether the Company established that the discipline imposed was
contractually appropriate.

As just noted, the first part of a just cause analysis requires a determination of the
grievant's wrongdoing. In making their overall case concerning the grievant's alleged
wrongdoing, the Company reviewed the events of both January 24 and 25. The events
that
occurred on those two dates though are separate and distinct. When the Employer
discharged the
grievant, it made no reference whatsoever to the events of January 24. This of course
means that
the Employer did not rely on the events of that date (i.e. January 24) as the basis for the
grievant's
discharge. Instead, the Employer only cited what happened on January 25. Since the
Employer
relied exclusively on the events of January 25 to justify the grievant's discharge, the
undersigned
will do likewise. Accordingly, attention is turned to the events of that date.

It is undisputed that on the evening of January 25, 1994, there was an incident
between
Rushak and Musha wherein Musha was knocked to the ground with enough force that her
glasses
flew off her face. What is disputed is who caused it to happen. In other words, who was
the
aggressor? Musha and Rushak each point a finger, so to speak, at the other and contend
they were
the aggressor. Musha testified that after she and Rushak exchanged words in the hallway,
Rushak
ran down the hall toward her with his hand in a fist and hit her in the shoulder. Rushak
testified
that Musha came out of a rest room where she had been smoking marijuana and charged
down the
hall towards him; that he held out his arm to fend her off and protect himself; and that
Musha ran
into his extended forearm which caused her to fall down. Obviously, their testimony
conflicts
over who was the aggressor and cannot be reconciled.

After weighing the conflicting testimony concerning who was the aggressor, the
undersigned credits Musha's account for the following reasons. First, Musha's account of
the
incident was corroborated in part by what Rushak himself told Korol in their phone call
immediately after the incident. Specifically, Rushak told Korol that he had pushed Musha
down.
This statement, together with Musha's account, certainly led Korol to believe that Rushak
was the
aggressor and this is why Korol asked him (rather than Musha) to clock out and go home.
The
clear inference of Rushak's being sent home that night was that Korol viewed him as being
the
aggressor. If he was not the aggressor that night and was, as he testified, just trying to fend
off
Musha's charge, it is logical to assume that he would have said something to this effect to
Korol.
However, Rushak did not say anything to Korol to that effect in either of their phone calls on
January 25 or 26. Specifically, Rushak never told Korol that Musha was the
aggressor. As a
result, the first time the Employer heard Rushak's contention that Musha was the aggressor
in the
January 25 incident was at the hearing. Obviously, Rushak's failure to mention this
until the
hearing undercuts his story because it gives the appearance of having been concocted for the
hearing. Second, Musha's credibility as a witness was strengthened, not harmed, by her
admission at the hearing that she had on previous occasions smoked marijuana on the job.
Generally speaking, employes are loath to admit to engaging in prohibited conduct at work
because they know there may be adverse consequences to them as a result. That being so, it
was
probably tempting to Musha to deny that she smoked marijuana at work. However, she did
not
do so. While there may be adverse consequences to Musha for making this admission, it
greatly
enhanced her credibility here. Third, the undersigned finds it hard to believe that Musha
would
try to physically assault Rushak (as he so testified) since he was considerably larger and
heavier
than her. It would have been just plain dumb for Musha to attack Rushak because given his
advantage in size, he could no doubt have inflicted far more damage on her than vice versa.
Given the foregoing then, the undersigned credits Musha's testimony which establishes that
Rushak attacked her and physically knocked her to the ground.

Having held that Rushak did what he was accused of doing (namely knocking Musha
to
the ground), the next question is whether this conduct warranted discipline. Arbitrators
generally
hold that such conduct constitutes misconduct and cause for discipline. In accordance with
this
accepted view, the undersigned finds likewise. The fact that Musha and Rushak had argued
constantly all evening and exchanged taunts just before Musha was knocked to the ground
does not excuse or justify Rushak's actions. Whatever was said, Rushak's physically
knocking
Musha down was both inappropriate and intolerable.

The second part of a just cause analysis requires that the Company establish that the
penalty imposed was contractually appropriate. Said another way, the punishment must fit
the
crime. Based on the following rationale, I conclude discharge was appropriate under the
circumstances. First, while the normal progressive disciplinary sequence is for employes to
receive warnings and suspensions prior to discharge, that does not mean that all discipline
must
follow this sequence. Some offenses are so serious they are grounds for summary discharge
even
if the employe has not been previously disciplined. Such is the case here because the parties
have
contractually agreed in Article VI, Section 4 that progressive discipline does not
apply in certain
situations, one of which is fighting. The grievant's conduct here can easily be categorized as
fighting. This of course means that since the grievant engaged in fighting, the Company did
not
have to impose progressive discipline prior to discharge; instead, it could discharge
immediately.
Next, nothing in the record indicates that the grievant was subjected to disparate treatment in
terms of the punishment imposed. While the grievant was fired and Musha was not, there is
a
logical and nondiscriminatory reason for this. The reason is that, as previously noted, the
grievant
was the aggressor in the incident and Musha was not. Simply put, she was the victim. That
being
the case, Rushak and Musha do not jointly share responsibility for what happened. Instead,
the
grievant alone bears responsibility for Musha being knocked to the floor. Finally, it cannot
be
overlooked that the grievant was an extremely short-term employe. In some disciplinary
cases an
employe's length of service with an employer serves as a mitigating factor. Here, though, it
does
not because the grievant worked for the Company just a short period of time. Accordingly,
then,
it is held that the severity of the discipline imposed here (i.e., discharge) was neither
disproportionate to the offense nor an abuse of management discretion, but was reasonably
related
to the seriousness of the grievant's proven misconduct. The Company therefore had just
cause
to discharge the grievant.

Based on the foregoing and the record as a whole, the undersigned enters the
following

AWARD

That Michael Rushak was discharged for just cause. Therefore, the grievance is
denied.